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Pueblo of Jemez v. United States

United States District Court, D. New Mexico

March 17, 2017

PUEBLO OF JEMEZ, a federally recognized Indian tribe, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant, and NEW MEXICO GAS COMPANY, Defendant-in-Intervention.

          PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION PRODUCED BY THE UNITED STATES

          William P. Lynch United States Magistrate Judge.

         The Pueblo of Jemez (“Plaintiff”) filed this case against the United States of America (“Defendant”) on July 20, 2012.

         This case relates to the historic use of land that is now the Valles Caldera National Preserve.

         New Mexico Gas Company (“Defendant-Intervenor”) has intervened in this case in order to protect its interests in certain land that is now part of the Valles Caldera National Preserve.

         During discovery, Defendant will disclose information, including documents, data, and/or other material, pursuant to Federal Rule of Civil Procedure 26(a)(1).

         The disclosed documents, data, and/or other materials may contain information regarding the historic use of the Valles Caldera National Preserve, including information regarding sensitive cultural resources of Plaintiff and Plaintiff's members and/or of other Indian Tribes and/or individuals not parties to this case.

         Defendant asserts that such documents, data, and/or other materials may contain information, including sensitive cultural information and may be subject to protection from disclosure pursuant, but not limited, to the Privacy Act, 5 U.S.C. § 552a, the Indian Minerals Development Act, 25 U.S.C. § 2103(c), the Trade Secrets Act (or Act of 1948), 18 U.S.C. § 1905, the Archeological Resources Protection Act, 16 U.S.C. § 470hh(a), the Antiquities Act, 54 U.S.C. § 320301, the National Parks Omnibus Management Act, Section 207, 54 U.S.C. § 100707, the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201, the National Historic Preservation Act, 54 U.S.C. § 300101 et seq., and the Mineral Leasing Act, 30 U.S.C. § 181 et seq. The documents, data, and/or other materials may also be subject to protection from disclosure as confidential resource, commercial, and/or proprietary information under federal law and/or regulations, and because it relates to Indian Tribes and/or individuals not parties to this case.

         IT IS THEREFORE ORDERED THAT:

         1. Documents, data, and/or other materials, as well as copies or images of such documents, data, and any notes, dictation tapes, or media containing electronically stored information, and/or other materials, that are designated as protected from disclosure as outlined above shall be deemed “Confidential Materials” for purposes of this Order.

         2. This Order governs the Confidential Materials to be provided by Defendant to Plaintiff and/or to Defendant-Intervenor for all purposes related to this case, including but not limited to litigation, alternative dispute resolution, or other formal dispute resolution process, and informal settlement discussions.

         3. Plaintiff and Defendant-Intervenor shall not use the Confidential Materials, or any of their contents, for any purpose other than this case and any related administrative proceedings, if any, before the United States Department of the Interior. Any information designated as Confidential Materials shall be kept strictly confidential by Plaintiff's and Defendant-Intervenor's attorney(s), and Plaintiff's and Defendant-Intervenor's designated consulting or retained experts (“Expert Witnesses”), and such information shall not be disclosed, made public, or made available to anyone, except as specifically provided in this Order or in any further Order that this Court may enter.

         4. Any materials, such as pottery shards and accompanying information, made available by Defendant to Plaintiff's and/or Defendant-Intervenor's attorney(s) and/or Expert Witnesses for inspection in this case shall be deemed confidential for purposes of the inspection. This limitation does not impact the use or dissemination of information that is independently available in the public domain.

         5. Any images or copies of Confidential Materials that are provided to Plaintiff's and/or Defendant-Intervenor's attorney(s) and/or Expert Witnesses shall include the endorsement “CONFIDENTIAL MATERIALS-DO NOT DISCLOSE.” Defendants may, in good faith and with notice to Plaintiff and Defendant-Intervenor, forego Defendant's review to determine the confidentiality of certain documents, data, and/or other materials to be provided to Plaintiff and Defendant-Intervenor in order to provide Plaintiff and Defendant-Intervenor with those documents on an expedited basis, in which case Defendant shall include on those documents, data, and/or other materials the endorsement “CONFIDENTIAL MATERIALS-DO NOT DISCLOSE; PROVIDED ON AN EXPEDITED BASIS AND WITHOUT REVIEW, ” before providing the documents, data, and other materials to Plaintiff and Defendant-Intervenor. All documents, data, and/or other materials so endorsed shall be deemed Confidential Materials and protected as such under this Order. If Plaintiff or Defendant-Intervenor intend to file documents, data, and/or other materials that have been endorsed as Confidential Materials with the Court as evidence or for any other purpose, Plaintiff or Defendant-Intervenor shall follow the procedures set forth in this Order.

         6. Plaintiff or Defendant-Intervenor may request that Defendant review certain endorsed documents, data, and/or other materials to determine if they contain confidential information; redact any confidential information; and produce a version of the documents, data and/or other materials, after the necessary redactions, for filing with the Court without the Confidential Materials endorsement. After the documents, data, and/or other materials have been redacted or otherwise determined not to contain ...


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